CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement"), dated as of May 1, 1997,
among Foundation Health Systems, Inc. (formerly Health Systems International,
Inc.), a Delaware corporation (the "Company"), Foundation Health Corporation, a
Delaware corporation ("FHC"), and Allen J. Marabito ("Marabito").
WHEREAS, the Company, Marabito and FHC, which became a wholly-owned
subsidiary of the Company upon consummation of the merger on April 1, 1997 (the
"Merger Date")(pursuant to the Agreement and Plan of Merger, dated October 1,
1996, by and among the Company, FH Acquisition Corp. and FHC), have previously
entered into that certain Amended and Restated Employment Agreement, dated as of
December 16, 1996 (the "Employment Agreement");
WHEREAS, it is mutually in the best interests of Marabito and the
Company to terminate the Employment Agreement;
WHEREAS, the Company desires to continue to benefit from the
experience and ability of Marabito in the capacity of a consultant to the
Company upon termination of his employment relationship with the Company and
Marabito is willing to commit himself to serve in the capacity of a consultant
to the Company; and
WHEREAS, the parties desire to enter into this Agreement setting forth
(i) the terms and conditions of the termination of the employment relationship
of Marabito with the Company and (ii) the terms and conditions of the retention
of Marabito as a consultant to the Company.
NOW, THEREFORE, in order to effect the foregoing, in consideration of
the premises and the respective covenants and agreements of the parties herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. TERMINATION OF EMPLOYMENT AGREEMENT.
(a) Except as provided in paragraph (b) below, effective as of the
date hereof, the Employment Agreement shall be terminated and, except as
provided herein, the Company, FHC and Marabito shall have no further rights
and/or obligations under the Employment Agreement. As of the Effective Date (as
defined below), Marabito hereby resigns his position as an officer and/or
director of the Company and each of its direct or indirect subsidiaries.
(b) Notwithstanding paragraph (a) above and other provisions of this
Agreement, the provisions of Sections 5(d) and (e) and Sections 6 through 11 of
the Employment Agreement shall survive the termination of the Employment
Agreement (the "Surviving Provisions").
(c) The provisions set forth in paragraphs 5 through 7 hereof shall
commence immediately on the date on which all Settlement Payments (as defined
below) have been made pursuant to paragraph 2 hereof (the "Effective Date").
(d) Marabito hereby agrees and authorizes the Company and Wachovia
Bank of North Carolina, N.A. to amend the Benefit Protection Trust dated as of
April 1, 1997 (the "Trust Agreement") in favor of Marabito in order to (i)
replace Schedule I to the Trust Agreement with Schedule I attached hereto and
(ii) make such other changes required in order to make payments to Marabito
required pursuant to this Agreement.
2. FINAL PAYMENT.
(a) Marabito shall be entitled to receive, in full satisfaction of
the Company's and FHC's obligations set forth in the Employment Agreement
(except for the Surviving Provisions), a cash lump sum in an amount equal to
$2,222,643, subject to applicable withholding requirements, if any (the
"Settlement Payment"). Marabito acknowledges that no further amounts are due
under Section 5(c) of the Employment Agreement.
(b) The Settlement Payment shall be made by wire transfer in the name
of Allen J. Marabito to Wells Fargo Bank, 1113 East Bidwell Street, Folsom,
California 95630, Account Number 0363202458, Federal Transit No. 121000248, no
later than eight (8) days following the
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date of Marabito's execution of this Agreement, provided that Marabito has
not exercised his right to revoke pursuant to paragraph 4 hereof. Marabito
acknowledges and agrees that, in the event that he revokes this Agreement
pursuant to paragraph 4 hereof, he shall have no right pursuant to this
Agreement to receive any payments described in this paragraph 2(b). Marabito
further acknowledges that following his receipt of the Settlement Payment,
the Company and FHC shall have no further obligations to him with respect to
the benefits described in the Employment Agreement or otherwise, except for
the Surviving Provisions, including, but not limited to, the Deferred
Compensation Plan, the FHC Retiree Medical Plan, the FHC Stock Option Plan,
and the Indemnification Agreement dated July 8, 1991, a copy of which is
attached hereto as Exhibit A.
(c) The Company acknowledges and agrees that the Board of Directors
of FHC recently approved, and the Compensation and Stock Option Committee of the
Board of Directors of the Company recently ratified, the payment of certain
amounts to Deferred Compensation Plan participants, who vote to approve the
suspension of the Deferred Compensation Plan, upon the receipt of the necessary
approvals to suspend the Deferred Compensation Plan. The Company agrees to use
all reasonable efforts to seek and obtain the necessary approvals to suspend the
Deferred Compensation Plan as soon as practicable after the date hereof.
Marabito hereby agrees to such suspension of the Deferred Compensation Plan and
in consideration thereof, the Company agrees to make a lump sum cash payment to
Marabito, by wire transfer to the bank account described in paragraph 2(b)
hereof, within three (3) business days following the date of receipt by the
Company of the consents of 80% or more of the participants in the Deferred
Compensation Plan to suspend the Deferred Compensation Plan, in the amount of
$181,476.
(d) Simultaneously with the payment of the Settlement Payment, the
Company shall make a lump sum cash payment to Marabito by wire transfer to the
bank account described in paragraph 2(b) hereof for Marabito's accrued but
unpaid vacation time.
(e) The Company acknowledges and agrees that during the benefit
period referred to in Section 5(d) of the Employment Agreement, Marabito shall
be entitled to
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automobile benefits as provided to Marabito by FHC immediately prior to the
Merger Date (as defined in the Employment Agreement) and as set forth in the
"Policy Guidelines on Executive Automobile Policy" dated May 1, 1993, a copy
of which is attached hereto as Exhibit B.
3. RELEASES.
(a) As a material inducement to enter into this Agreement, Marabito
hereby knowingly and voluntarily, fully and finally releases, acquits and
forever discharges the Company and FHC, affiliates thereof, and their past and
present officers, directors, shareholders, partners, trustees, beneficiaries,
managers, employees, attorneys, agents, successors or assigns (the "Company
Released Parties"), from any and all claims, charges, complaints, liens,
demands, causes of action, obligations, damages and liabilities, KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, that he had, now has, or may hereafter claim
to have against the Company Released Parties arising out of or relating in any
way to Marabito's employment relationship with the Company or the termination
thereof, or the termination of the Employment Agreement (including without
limitation the Age Discrimination Act). Notwithstanding the generality of the
foregoing, nothing contained herein shall release the Company or FHC or in any
way impair Marabito's rights to insurance coverage or reimbursement or
indemnification from the Company or FHC arising from or relating in any way to
Marabito's service as an employee, officer or director as provided by law or
under the Company's or FHC's bylaws, or under any applicable indemnification
agreement (including the Indemnification Agreement dated July 8, 1991) or
insurance policy to which the Company or FHC is a party, including, but not
limited to, Marabito's rights to reimbursement, coverage or indemnification in
connection with any current or future litigation matter arising from or relating
in any way to Marabito's services as an employee, officer, director or
representative of FHC or the Company; nor shall the foregoing release the
Company or FHC from any claim relating to the breach by the Company or FHC of
its obligations set forth herein, or set forth in the Surviving Provisions,
(which include, not are not limited to, the Deferred Compensation Plan, the FHC
Retiree Medical Plan and the FHC Stock Option Plan).
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(b) As a material inducement to enter into this Agreement, each of
the Company and FHC, on its behalf and that of its affiliates and their officers
and directors, agents employees, successors and assigns (in their capacity as
officers or directors of the Company or FHC) likewise hereby knowingly and
voluntarily, fully and finally releases, acquits, and forever discharges
Marabito and his agents, employees, successors, heirs, beneficiaries or assigns
(the "Marabito Released Parties") from any and all claims, charges, complaints,
liens, demands, causes of action, obligations, damages and liabilities, KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, that it had, now has, or may hereafter claim
to have against Marabito Released Parties arising out of or relating in any way
to Marabito's relationship with the Company or FHC as an employee, officer,
director or representative, whether or not previously asserted before any state
or federal court or before any state, federal or regulatory agency or
governmental entity. Notwithstanding the generality of the foregoing, nothing
contained herein shall release Marabito from any claim relating to the breach by
Marabito of any confidentiality agreements with the Company or FHC or any of its
affiliates or the obligations set forth herein, or set forth in the Surviving
Provisions.
(c) Each of the Company, FHC and Marabito acknowledges that such
party has been advised by legal counsel regarding, is familiar with and
expressly waives all rights afforded by Section 1542 of the Civil Code of the
State of California ("Section 1542"), or any statute of similar effect in any
other jurisdiction in which any action might be brought, with respect to the
claims described in paragraphs (a) and (b) of this paragraph 3. Section 1542
states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Thus, notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release, each of the Company, FHC and Marabito
understands and agrees that this Agreement is intended to include all claims, if
any, described in paragraphs (a) (in the case
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of Marabito) and (b) (in the case of the Company and FHC) above, which either
party may have and which neither party now knows or suspects to exist in such
party's favor against the Company Released Parties (in the case of Marabito)
or Marabito Released Parties (in the case of the Company and FHC) and that
this Agreement extinguishes those claims.
4. MARABITO RIGHT TO REVOKE.
Marabito acknowledges that the Company has advised him to consult
with an attorney of his choosing prior to signing this Agreement and that he
has twenty-one (21) days during which to consider the provisions of this
Agreement, although he may sign and return it sooner. Marabito further
acknowledges that he has been advised by the Company that he has the right to
revoke this Agreement for a period of seven (7) days after signing it and
that this Agreement shall not become effective or enforceable until such
seven (7) day revocation period has expired. Marabito acknowledges and
agrees that, if he wishes to revoke this Agreement, he must do so in writing,
signed by Marabito and received by the Company at its headquarters no later
than 5:00 p.m. Pacific Standard Time on the seventh (7th) day after Marabito
has signed the Agreement. Marabito acknowledges and agrees that, in the event
that he revokes this Agreement, he shall have no right to receive any payment
hereunder. Marabito understands and agrees that the Company is under no
obligation to offer such payment and that he is under no obligation to
consent to the release set forth in paragraph 3(a) of this Agreement.
Marabito represents that he has read this Agreement and understands its terms
and that he enters into this Agreement freely, voluntarily, and without
coercion.
5. RETENTION AS A CONSULTANT.
(a) The provisions of this paragraph 5 shall commence upon the
Effective Date, and shall expire two (2) years from the Effective Date,
unless earlier terminated by reason of Marabito's death or by the Company for
Cause (the "Consulting Period"). "Cause" shall mean (i) a willful act by
Marabito which constitutes gross misconduct or fraud and which is materially
injurious to the Company or (ii) conviction of, or a plea of "guilty" or "no
contest" to, a felony. No act, or failure to act, by
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Marabito shall be considered "willful" unless committed without good faith
and without a reasonable belief that the act or omission was in the Company's
best interest. No Cause shall be deemed to exist unless the Company's Board
of Directors (the "Board") has determined, by a resolution adopted with the
affirmative votes of at least eight (8) of its members, that Cause exists.
Following the termination of this Agreement, the Company's and Marabito's
obligations under this Agreement shall cease.
(b) During the Consulting Period, Marabito shall render such
consulting services to the Company and its affiliates as Marabito and the
Company agree upon from time to time; PROVIDED, HOWEVER, that (i) Marabito will
provide substantially full time efforts to help the Company finalize its
transition planning during the short term period immediately following the
Effective Date, (ii) following such short term period Marabito will not be
required to devote more than fifty percent (50%) of his business time to the
performance of such services for the remainder of the first year of the
Consulting Period, taking into account the time and efforts taken pursuant to
clause (i) above; and (iii) Marabito will not be required to devote more than
twenty-five percent (25%) of his business time to the performance of such
services during the second year of the Consulting Period. In this regard, the
Company shall provide Marabito reasonable notice of such consulting obligations
and Marabito shall have the right to reschedule commitments to the Company to
accommodate the requirements of his other outside interests.
(c) Marabito shall perform his duties hereunder at such locations as
are acceptable to him and the Company or by telephone consultation. To
facilitate Marabito's performance during the Consulting Period, the Company
shall furnish Marabito with the use of an office and secretary at the Company's
headquarters reasonably satisfactory to Marabito.
6. COMPENSATION AND RELATED MATTERS.
(a) As a material inducement to enter into this Agreement, the
Company shall pay Marabito a payment totaling $1,777,357 payable as follows:
(i) $1,177,357 relating to the first twelve months of the Consulting Period on
the Effective Date, and (ii) $600,000 relating
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to the second twelve months of the Consulting Period being payable in equal
monthly installments beginning on the first anniversary of the Effective
Date, PROVIDED, HOWEVER, that a pro rata amount paid to Marabito pursuant to
clause (i) above shall be paid back to the Company by Marabito upon a breach
by Marabito of the provisions set forth in paragraph 7 hereof. The "pro rata
amount" referred to in the preceding sentence shall be determined by dividing
(A) the number of months from such "breach" to the end of the first year of
the Consulting Period by (B) 12.
(b) The payment described in paragraph (a)(i) above shall be made by
wire transfer to the bank account described in paragraph 2(b) hereof no later
than eight (8) business days following the date of Marabito's execution of this
Agreement, provided that Marabito has not exercised his right to revoke pursuant
to paragraph 4 hereof. Marabito acknowledges and agrees that, in the event that
he revokes this Agreement pursuant to paragraph 4 hereof, he shall have no right
pursuant to this Agreement to receive any payments described in paragraph (a)
above.
(c) The Company shall reimburse Marabito for reasonable business
expenses incurred in the performance of Marabito's duties hereunder, including,
but not limited to reasonable and necessary travel, entertainment or similar
incidental expenses in connection with the provision of consulting services;
PROVIDED, that such expenses shall be incurred and accounted for in accordance
with the policies and procedures established by the Company from time to time
for its senior executives.
7. NON-COMPETITION.
(a) Subject to paragraph 5(a) hereof, as a material inducement to
enter into this Agreement, for a period of two (2) years after the Effective
Date, Marabito shall not, directly or indirectly, without the prior written
consent of the Company, own, manage, operate, join, control, be employed by or
participate in the ownership, management, operation or control of, or be
connected with (as a stockholder, partner, or otherwise), any business,
individual, partner, firm, corporation, or other entity that is in the health
maintenance organization or group health insurance business (i) of the kind
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conducted by the Company or any of its affiliates on the Effective Date, and
(ii) in the states where the Company (or any affiliate of the Company) operates
its business on the Effective Date provided, however, that the "beneficial
ownership" by Marabito, either individually or as a member of a "group," as such
terms are used in Rule 13d of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), of not more
than five percent (5%) of the voting stock of any publicly held corporation
shall not be a violation of this Agreement.
(b) In the event Marabito wishes to enter into a business
relationship or otherwise take any action which he reasonably believes in good
faith will not violate the terms of paragraph (a) above, Marabito may request
approval from the Company to enter into such relationship or take such action.
If (i) the Company's Board of Directors or President agrees that Marabito's
business relationship or taking such action would not violate paragraph (a)
above or (ii) the Company's Board of Directors or President fails to respond to
Marabito's written request to the Company within 30 days from the receipt of
such written request by the Company's President or Secretary, then Marabito
shall be deemed to have complete approval from the Company to take such actions
or maintain such business relationships described in Marabito's written request
to the Company. In the event the Company's Board of Directors or President
informs Marabito that it believes Marabito's business relationship or actions
described in Marabito's request would violate Marabito's obligations under
paragraph (a) above, so long as Marabito has not been engaged in such business
relationship or taken such actions for a period of more than 10 days prior to
the date of receipt by the Company's President or Secretary of Marabito's
request for approval, Marabito will be deemed to be in compliance with the terms
of paragraph (a) above, if Marabito discontinues such actions or business
relationship within 15 days after Marabito has been informed that the Company's
Board of Directors or President has determined that such action or business
relationship would violate paragraph (a) above.
(c) It is further expressly agreed that the Company and its
affiliates would suffer irreparable injury if Marabito were to compete with the
Company or
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any affiliate of the Company in violation of this Agreement and that the
Company and its affiliates would by reason of such competition be entitled to
injunctive relief in a court of appropriate jurisdiction, and Marabito
further consents and stipulates to the entry of such injunctive relief in
such a court prohibiting Marabito from competing with the Company or any
affiliate of the Company in violation of this Agreement.
(d) If it is determined by a court of competent jurisdiction in any
state that the non-competition covenant in this paragraph 7 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
8. NONDISPARAGEMENT.
Neither the Company or FHC on the one had, nor Marabito on the other
hand, will make any derogatory or negative statements about the other party that
may adversely affect the current or potential business relationships of the
other.
9. SUCCESSOR; BINDING AGREEMENT.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company and each entity
that, directly or indirectly, becomes a parent corporation of the Company, by
agreement in form and substance satisfactory to Marabito, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the Company as herein
before defined and any successor to its business and/or assets and each entity
that, directly or indirectly, becomes a parent corporation of the Company.
(b) This Agreement and all rights of Marabito hereunder shall inure
to the benefit of and be enforceable by Marabito's personal or legal
representatives, executors, administrators, successors, heirs,
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distributees, devisees and legatees. If Marabito should die while any
amounts would still be payable or benefits would still be provided to him
and/or his family hereunder if he had continued to live, all such amounts and
benefits (including, but not limited to, the amounts payable under Section
6(a) hereof), unless otherwise provided herein, shall be paid or provided in
accordance with the terms of this Agreement to Marabito's devisees, legatees,
or other designees or, if there be no such designee, to Marabito's estate.
10. NOTICE.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States certificated or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to Marabito:
5899 Wedgewood Drive
Granite Bay, California 95746
With a copy to:
Alschuler Grossman & Pines LLP
2049 Century Park East, 39th Floor
Los Angeles, California 90067-3213
Attention: Marshall B. Grossman, Esq.
If to the Company:
Foundation Health Systems, Inc.
21600 Oxnard Street
Woodland Hills, California 91367
Attn: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
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11. WITHHOLDING.
All amounts payable hereunder shall be subject to such withholding
taxes as may be required by law.
12. MODIFICATION OF AGREEMENT; GOVERNING LAW.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by Marabito and such officer of the Company as may be specifically designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto or, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of California without regard to its conflicts of law
principles.
13. VALIDITY.
The validity or enforceability of any provision or provisions of this
Agreement shall not be affected by the invalidity or unenforceability of any
other provision of this Agreement, and such valid and enforceable provisions
shall remain in full force and effect.
14. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
15. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement of the parties hereto
in respect of the subject matter contained herein and supersedes all prior
agreements,
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promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or
representative of any party hereto which are related to the subject matter of
the Employment Agreement or the termination thereof.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the date and year first written above.
FOUNDATION HEALTH SYSTEMS, INC.
By:_____________________________
Name:
Title:
FOUNDATION HEALTH CORPORATION
By:_____________________________
Name:
Title:
________________________________
ALLEN J. MARABITO
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